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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
Surya Prakash - Petitioner
Versus
The Divisional Commissioner & another - Respondents
CMPMO No. 365 of 2022
Decided On : 14-12-2022
Constitution of India, 1950 - Article 226, 227, 309, 311, 32, 226, 136 - CCS (CCA) Rules, 1965 - Rule 14, 11 (vi), 15, 23 - HPCS (RP) Rules 2009 - H.P. Land Revenue Act, 1954 - Section 135 - CCS (CCA) Rules, 1964 - Commonwealth of Australia Constitution Act - Section 71 - Disciplinary Authority - Imposition of Penalty - Petitioner faced inquiry - Inquiry Officer held charges proved against him - Disciplinary Authority imposed major penalty upon petitioner – Commissioner while vested with power to hear service appeal under rules embarks upon judicial powers of state and by implication performs quasi-judicial functions - Para 18.
Finding of the Court:
It is evident from impugned order that Commissioner had applied his mind to merits of case - In these circumstances, it was incumbent upon Commissioner to have afforded petitioner an opportunity of being heard - Consequence of impugned order is that penalty imposed on petitioner has come into effect without adjudication of appeal of petitioner on merits - Adoption of such approach in exercise of quasi-judicial functions cannot be countenanced and need deprecation - Article 311 of Constitution and Rule 15 of Rules specifically provides that penalty can be imposed by Disciplinary Authority on basis of evidence available in inquiry, meaning thereby that imposition of penalty by Disciplinary Authority would not be a mechanical process - Merit of factors taken into consideration by Disciplinary Authority while imposing penalty were still under adjudication - Disciplinary Authority having performed its duties had no role to make submissions to convince Appellate Authority about merits of his decision - Manner, in which impugned proceedings have been conducted, clearly smears of biasness - Impugned order passed by Divisional Commissioner, is quashed and set aside.
Result: Ordered accordingly.
JUDGMENT :
Satyen Vaidya, J.
Aggrieved against the order dated 11.7.2022, passed by Divisional Commissioner, Kangra Division at Dharmshala, (for short “the Commissioner”) in Service Appeal No. 49 of 2022, the petitioner has approached this Court by invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
2. The facts are not disputed. Petitioner faced inquiry under Rule 14 of CCS (CCA) Rules, 1965 (for short the “Rules”). The Inquiry Officer held the charges proved against him. The Disciplinary Authority i.e. the Deputy Commissioner, Una imposed major penalty upon the petitioner under Rule 11 (vi) of the Rules. The post of petitioner has been ordered to be reduced from Kanungo to Patwari for a period of three years with immediate effect, vide order dated 10.3.2022 with further directions as under:-
ii) He will not earn annual increments during the period of reduction.
iii) He will regain his original seniority in the higher post which has been assigned to him (as Kanungo) on expiry of above period.”
3. Aggrieved against the order dated 10.3.2022, passed by Disciplinary Authority, petitioner has approached the Appellate Authority i.e. The Commissioner by filing an appeal under Rule 23 of the Rules. Along with appeal, petitioner also preferred an application for staying the implementation of impugned order dated 10.3.2022, passed by Deputy Commissioner, Una. The appeal filed by petitioner is still pending before the Commissioner.
4. On 22.3.2022, Commissioner passed the following orders in the appeal as well as the application for interim relief, filed by the petitioner: -
I have heard the counsel for the applicant at length.
I am convinced with the arguments advances by the counsel therefore, the impugned order dated 10th March 2022 passed by the Deputy Commissioner Una is stayed till further orders.
Copy of order be sent to the Deputy Commissioner, Una.”
5. Another subsequent order came to be passed by the Commissioner in the service appeal of petitioner on 11.7.2022 to the following effect:-
Whereas this office vide order dated 22.03.2022 stayed the above order passed by the Deputy Commissioner Una till further orders. Meanwhile the deputy Commissioner Una vide letter No. 2582 dated 26.05.2022 has submitted an application under Section 151 CPC for vacation of stay order dated 22.03.2022. In his application Deputy Commissioner has stated that Surya Prakash (the then Patwari) entered the Mutation No. 724 on basis of application submitted by only 9 persons out of 193 persons without any signature / consent of all the co-sharers and as such he has violated Section 135 of the H.P. Land Revenue Act & procedure laid down under the Chapter 14 of H.P. Land Records Manual. He has further submitted that the charges leveled against appellant sh. Surya Prakash were proved in the inquiry report submitted by the Inquiry Officer-cum- Additional Deputy Commissioner, Una and the act of the said official has been found to be in complete violation of CCS (Conduct) Rules, 1964), which is sufficient reason for vacat
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